0521876990 cambridge university press the milosevic trial lessons for the conduct of complex international criminal proceedings sep 2007

Yet the Milosˇevic´ case, the first trial of a former head of state by a truly international criminal tribunal and one of the most complex and lengthy war crimes trials in history, stand

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The Milosˇevic´ Trial

When Slobodan Milosˇevic´ died in the United Nations Detention Unit in The Hague over four years after his trial had begun, many feared – and some hoped – that international criminal justice was experiencing some sort of death itself Yet the Milosˇevic´ case, the first trial of a former head of state by a truly international criminal tribunal and one of the most complex and lengthy war crimes trials in history, stands for much in the development and the future of international criminal justice, both politi- cally and legally This book, written by the senior legal adviser working for the Trial Chamber, analyses the trial to determine what lessons can be learnt that will improve the fair and expeditious conduct of complex international criminal proceedings brought against former heads of state and senior political and military o fficials, and develops reforms for the future achievement of best practice in international criminal law.

  is Senior Lecturer in Law at Monash University Law Faculty and an international law consultant He was, until October 2006, a Senior Legal O fficer of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Senior Legal Adviser to the Chamber on the Milosˇevic´ case.

The Milosˇevic´ Trial:

Lessons for the Conduct of Complex International Criminal Proceedings

G I D E O N B OA S

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK

First published in print format

ISBN-13 978-0-521-87699-5

ISBN-13 978-0-511-34134-2

© Gideon Boas 2007

2007

Information on this title: www.cambridge.org/9780521876995

This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

ISBN-10 0-511-34134-2

ISBN-10 0-521-87699-0

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Published in the United States of America by Cambridge University Press, New York www.cambridge.org

hardback

eBook (EBL) eBook (EBL) hardback

To Pascale

The purpose and content of this book 2

The structure of this book 5

The context of this book 9

Equality of arms 32

The right to confront witnesses 43

Written evidence in lieu of oral testimony 47Admission of adjudicated facts 50

The right to counsel and to self-representation 53Defence counsel representation in international criminal courts and tribunals 55

2 T H E M I LO SˇEV I C´ P RO S E C U T I O N C A S E – G E T T I N G

O F F O N T H E W RO N G F O OT 79

Content and scope of the Milosˇevic´ indictments 80

The Kosovo indictment 8

The prosecution case concerning Kosovo 81

The Croatia and Bosnia indictments 83

The prosecution case concerning Croatia and Bosnia 84The context in which the crimes were committed 84Executing the plan 86

The scope of the charges 88

Milosˇevic´’s role and responsibility 88

The prosecution case on ‘Greater Serbia’ 90

Pleading practice and problems with the Milosˇevic´

The form of the indictment 93

Review of indictments 95

Analysis of the Milosˇevic´ indictments 96

The Kosovo indictment 96

The first Lazarevic´ Decision on the form of the

Conclusion on the defects in the three indictments 108

Joinder of the Milosˇevic´ indictments 115

Joinder application before the Trial Chamber 115

Joinder application on Appeal 118

Rule 98bis (judgement of acquittal) decision 121

Did Milosˇevic´ intend to commit genocide? 123

Dismissal of numerous allegations in Croatia and Bosnia indictments 126

The prosecution case 133

Scope of the prosecution case 133

Trial Chamber’s management of the prosecution case 142The defence case 153

Conduct of the defence case 153

Trial Chamber’s management of the defence case 155

Consideration by the Trial Chamber of more radical

case management approaches 163

Severance of one or more indictments 163

Case management principles in national and international

Case management in common law systems 171

Caseflow management or differential case management 172Individual case management 174

The willingness and capacity of judges to manage cases 176Case management in civil law systems 178

Germany 179

Belgium 180

France 181

Case management in international criminal law 181

The framework for best case management practice in

international criminal law 182

Case management at the ICTY 188

Case management regulations at the ICTY 189

Learning from the Milosˇevic´ case 193

The Oric´ case 194

The Prlic´ case 195

The Milutinovic´ et al case 197

Removing the right to self-representation 211

Health of the Accused 211

Second Reasoned Decision of 22 September 2004 213Appeals Chamber Decision of 1 November 2004 218Self-representation issues arising in other international

criminal courts and tribunals 222

The Special Court for Sierra Leone 222

The Norman Decision 222

The Gbao Decision 224

The ICTR 226

The Barayagwiza Decision 226

The Ntahobali Decision 227

The ICTY 228

The First Sˇesˇelj Decision 228

The Second Sˇesˇelj Decision 230

The First Appeals Chamber Sˇesˇelj Decision 232

The Second Appeals Chamber Sˇesˇelj Decision 233

Self-representation in the Krajisˇnik case 236

The Supreme Iraqi Criminal Tribunal (SICT) 238Practical difficulties of imposing counsel on uncooperative accused 239

Resources and facilities available to Milosˇevic´ 245

The use of amici curiae in international criminal law 246

The role of amicus curiae in international criminal

Definition 246

Amicus curiae in the Special Court for Sierra

Leone 249

Conclusion 251

Role of amici curiae in the Milosˇevic´ case 251

Actual assistance provided to the accused by the amici

The future for the innovative use of amicus curiae in complex

international criminal trials 256

The provision of ‘legal associates’ in the Milosˇevic´ trial 258

Resource issues in international criminal trials – Milosˇevic´

and other senior-level accused 260

Concluding comments on resource issues and the equality

The future of case management in complex international

Managing resource and representation issues in complex

international criminal law cases 284

The outdated common law/civil law divide: time for

international criminal law to evolve 286

The need to consider a new appellate jurisdiction for

international criminal law 288

After Milosˇevic´: the future of complex international

criminal trials 291

F O R EWO R D

This book makes an important contribution to the development of globaljustice It is the most authoritative post mortem on the proceedingsagainst Slobodan Milosˇevic´, which were hailed as the first ‘trial of thecentury’ of the twenty-first century When Justice Jackson observed,

apropos of Nuremberg, that ‘courts try cases, but cases also try courts’ he

accurately described the Milosˇevic´ case, a test for whether international

courts can today deliver on the Nuremberg legacy that political leaderswho mass-murder their own people can be made subject to human justice

In Mr Boas’s expert verdict, it was a test that our fledgling system of national criminal justice only narrowly managed to pass

inter-Others, more prejudiced and less informed, regard the trial as a totalfailure The White House, for example, has cited its inordinate length, itsmassive cost, and its inconclusive end as an argument against producingany kind of fair trial by an international court for the prisoners inGuantanamo Bay Its short-comings were much in mind when the IraqiSpecial Tribunal was set up to try Saddam Hussein: there were no inter-national judges, no right of self-representation, no ‘friends of the court’allowed to show friendship with a defendant whose death sentence waspredetermined rather than self-inflicted Those of us who championinternational justice, and the International Criminal Court in particular,have winced and shuddered in disbelief as this showcase trial went on,and on, and on It began in February 2002, but the prosecution case alonetook three years By 24 November 2005 this ‘whale of a trial’ had pro-duced 46,639 pages of transcript and 2,256 separate written filingsamounting to 63,775 pages The prosecution had introduced 930exhibits, amounting to 85,526 pages, as well as 117 videos The materialdisclosed to Milosˇevic´ amounted to over 1.2 million pages of documenta-tion – material he would never have the time to read, let alone absorb Inanswer to all this, he initially submitted a list of 1,631 witnesses By the end

of 2005, 75 per cent of the way through the time allocated for his defence,

he had introduced 50 videos and 9,000 pages of exhibits but had led only

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40 witnesses and had barely touched on the indictments relating toCroatia and Bosnia These statistics alone show just how unmanageablethis trial really was, during the four years in which both Trial and AppealChambers tried to manage it.

When Milosˇevic´ died and the trial had to be aborted, there was noshortage of instant journalistic hindsight In contrast, Dr Boas’s criticismproceeds from an analysis that is both expert and from the inside: he wasthe senior legal adviser to the trial judges, sitting in court for four years,from the day on which the prosecution opened to the day on which thetrial collapsed He shows the trial’s failings, precisely and irrefutably, andhis insight must inform and instruct the future development of interna-tional justice The lessons he draws will be pondered in other courts tryingtruculent defendants, most notably in the International Criminal Courtnow taking shape in The Hague The prosecution mistake of ‘throwing thebook’ at those charged with crimes against humanity must not berepeated: gargantuan indictments are unmanageable and unnecessary.Criminal trials are not truth commissions – the adversary system is aprocess for determining whether an individual accused committed a par-ticular criminal act, and is not a means for retrospectively testing themorality of a political policy Just as national courts have abandoneddragnet conspiracy charges in favour of indictments containing sample orrepresentative charges of substantive offences, so international prosecu-tors must concentrate on specific events – usually specific massacres – forwhich they have evidence to prove that the defendant bears commandresponsibility Prosecutors do not (as many of them think) owe a duty tovictims to charge a political leader for every conceivable consequence ofhis brutal policies: they must observe a sensible divide between facts thatcan be proved by admissible evidence in court and opinions that must beleft to the conjectures of historians

Dr Boas rightly seeks to shake the complacency of what might betermed the international justice industry – the lawyers and human rightsactivists who behave as if the struggle to establish a global justice system hasbeen won, just because the ICC and other instrumental courts have beenestablished Unless these courts achieve measurable improvements in

efficiency and expedition in the conduct of their trials, the enterprise willfounder, as its high ideals and hopes collapse through delay and massiveexpense The symbolic importance of Milosˇevic´ on trial – the alleged archi-tect of mass murder and genocide in the Balkans denied impunity andbrought to justice – was largely squandered by the mistakes that are so rig-orously analysed in this book Dr Boas identifies the principal mistakes as

the prosecution’s incoherent case strategy, the Appeal Chamber’s decision

to combine three overloaded indictments, the trial chamber’s failure tocope with the defendant’s malevolent tactics, and the consequences of hisself-inflicted harm

Hindsight, of course, is generally the prerogative of the armchair critic

Dr Boas had to suffer these problems in silence and in person for the years

in which he was Senior Legal Adviser to the trial court It is important toremember that the prosecution and the Appeal Chamber, and indeed thetrial judges he advised, were acting in good faith and coping as best theycould with unprecedented situations and problems Nonetheless, heargues that the prosecution was over-zealous and over-expansive, trying

to impute too much to Milosˇevic´ and to attribute too much to his ‘GreaterSerbia’ policy This is borne out by the fact that it failed, at the close of itscase, to establish over 1,000 of the allegations it made at the outset – amassive indictment, by judgement of the court, of the prosecution’s ownmassive indictment In retrospect, the trial court should have ordered theprosecution to close in September 2002 after its evidence on Kosovo wascomplete and when the consequences of the defendant’s severe heart con-dition first became clear Had it ordered Milosˇevic´ then to proceed with hisdefence to that separate indictment, a verdict upon it could have beendelivered a year before his death

Paradoxically, however, what also emerges from Dr Boas’s critique isthat in respects other than its length, the trial was fair The court, indeed,bent over backwards to help the accused, providing him with the three

expert amici counsel and ample facilities for his own research team – so

ample that he was able to participate in Serbian politics under the guise ofpreparing his defence

The adversary system in Anglo-American courts has grown up in thecontext of defendants who co-operate with court procedures in the hope

of achieving acquittals, even on technical grounds Milosˇevic´ had no est in an acquittal: his object was to undermine the court and to exploit itsprocedures to attack his political enemies and to publicise his own victim-hood This is a common enough phenomenon now in internationalcourts, and the problem is how to adjust procedures to limit such grand-

inter-standing whilst retaining an acceptable level of fairness Amici counsel

cannot be friends both of the court and of the accused, and it makes noprofessional sense to order a lawyer to ‘represent’ a client who refuses allcommunication with him Various expedients were attempted by thelong-suffering Milosˇevic´ judges, and others have been attempted in other

international tribunals, but with little success It may be necessary to opt

for a more radical solution: to deny the right of adversary trial to an co-operative defendant, and shift instead to a civil inquisitorial process inwhich a judge examines the evidence and presents his findings to theCourt, at which point the defence may challenge them.

un-It is certainly true that the adversary trial procedure offers the best antee for the rights of defendants, but they are only entitled to it if theyaccept the jurisdiction and the rules of the court that provides it If theyrefuse all co-operation or offer it in a form which entails persistent disrup-tion, they should be made subject to an inquisitorial process whether theylike it or not – a process recognised as fair in many countries of the worldand which does not depend upon the defendant’s co-operation

guar-The Milosˇevic´ prosecution produced no ‘smoking gun’ although late in

its case it was permitted to introduce an amateur video shot at Srebrenica,showing young Muslims being taken out of a truck by Serb paramilitarieswho – after a blessing from a Serb orthodox priest – tied them up andmurdered them These grainy, black-and-white images, so reminiscent ofthe Second World War film of the SS slaughter of Jews in Eastern Europe,did not directly implicate Milosˇevic´ but had a similar impact to the film ofconcentration camp victims shown in the Nuremberg courtroom in legit-imating the process of putting him on trial Other evidence pointed to hiscontrol over Serb paramilitaries These bloodthirsty groups – ‘ArkansTigers’ and ‘Frankie’s Boys’ – were linked to Milosˇevic´ through documentsfound on the bodies of their fighters proving they had drawn pay as well asarms and ammunition from the Yugoslav army His long-denied backingfor Karadzˇic´ was demonstrated by electronic intercepts In respect of thedeportations in Kosovo, the prosecution evidence showed Albaniansfleeing from the pillaging, raping, and murder instigated by the Serbforces, who made co-ordinated and planned attacks from village to villageand even laid on special trains to take the inhabitants to the border aftertheir homes had been looted and burned

Slobodan Milosˇevic´ deserved to stand trial: he was no brain-damagedPinochet or cancer-ridden Honecker, but a defendant suffering from highblood pressure which he brought on himself by insisting on being his ownadvocate and by not taking medical advice or prescribed medication Hewas not an ignorant soldier or an isolated hereditary ruler: he trained as alawyer and became President of Yugoslavia’s biggest bank before becom-ing President of the Communist Party and of the country He was thehands-on commander of its army and police force, and the self-confessedarchitect of the mass extirpation of 800,000 Albanian Kosovars, uprootedfrom homes where their families had lived for centuries

International law now says that the person in ultimate command isresponsible for crimes committed by soldiers, police, and paramilitaries if

he knows about them yet fails to take necessary and reasonable steps to

stop or to punish them Although the Milosˇevic´ trial ended without a

verdict, and many victims felt robbed of the satisfaction they would wise have obtained from his conviction and lengthy imprisonment, thevery fact that he was put on trial by the international community stands as

other-a lother-andmother-ark in the struggle for globother-al justice True, there wother-as no writtenand reasoned judgement to confound those who deny Serb war guilt: theyturned up in their thousands to bid farewell to his coffin with their ‘Slobothe Hero’ banners But mourners were predominantly elderly and mostlyfrom redneck provinces: their lost leader was denied all state honours andhis wife and son stayed away, as did all national and international digni-taries His chief mourners were fellow indictees, on bail from The Hague,and the release of white doves over his grave provided a surreal, if unin-tended, promise that his burial might bring peace at last to the Balkans

P R E FAC E

The trial of Slobodan Milosˇevic´ got under way on 12 February 2002 withthe grand words of the ICTY Prosecutor, ‘Today, as never before, we seeinternational justice in action.’ Four years and one month later, Milosˇevic´lay dead in his cell in the United Nations Detention Unit in The Hague, thetrial unconcluded and the grand project of international criminal justiceapparently in jeopardy

What had brought international criminal law to this point and what

would be the legacy of the Milosˇevic´ trial? This question is the background

and motivation for this book The prosecution, the court, and Milosˇevic´himself, had all played a part in the course this trial had run, for better andfor worse The monstrously broad case pressed by the prosecution and thepathological behaviour and ill health of the accused persistently plaguedthe trial Yet the complexities faced by the court and its responses to themhave yielded profound lessons that should serve the development of bestpractice in the conduct of fair and expeditious international criminaltrials

These lessons are not just important for the limited remainder of the

ad hoc Tribunals’ work As the newly created flagship of international

criminal law – the International Criminal Court – stumbles at the firsthurdle of its daunting mandate, it is essential that the Court heeds the

lessons learnt by the ad hoc Tribunals, not the least those from the

Milosˇevic´ case, or risk dealing the greatest of blows to the development

and continued viability of international criminal justice The dangerstaring those of us who care in the face is complacency born of the suc-cessful long-term institutionalisation of international criminal law.Having pursued such an institution since the ineffective Treaty ofVersailles following the First World War, and more recently and vigorouslyfollowing the relatively successful post-Second World War trials, thoseinvolved in the momentous achievement of creating an InternationalCriminal Court risk – if they do not achieve measurable improvements inthe conduct of international criminal trials – frustrating the political and

xvii

financial masters of international criminal law to the point of dency and, worse, withdrawal of crucial political and financial commit-ment.

despon-I sat in the courtroom listening to Del Ponte’s words at the opening of

the Milosˇevic´ trial I was there throughout most of the following four years

as the senior legal adviser to the judges of the Trial Chamber and I wasthere on the day Judge Robinson formally closed the proceedings at 9.06

am on 14 March 2006 This book was conceived and evolved from thisexperience, as I realised that for the most part there was little in the way ofprecedent to assist in the determination of the myriad legal and practicalproblems raised This book is therefore coloured by my intimate experi-ence of the case and its characters and, while it is first and foremost anobjective legal and factual analysis, it is no doubt affected by my particularexperience of the issues confronted

Finally, some acknowledgements are warranted This work is a revision

of my Ph.D thesis undertaken at the University of Melbourne To

Professor Tim McCormack, my chief supervisor, sagely amicus on the

Milosˇevic´ case and good friend, I owe a debt of considerable gratitude for

his intellectual and practical advice throughout To Dr Carolyn Evans, myco-supervisor, for whose advice, relentless and speedy attention to mydrafts and, mostly, for pushing me outside of my intellectual comfort zone

I am profoundly appreciative To Pascale Chifflet I owe a great deal, for herextraordinary intellectual clarity that helped dig me out of conceptualholes in which I frequently found myself during this process, and formuch more I am grateful also to Natalie Reid, my friend and former col-league, who painstakingly reviewed drafts and offered sound advice ToGeoffrey Robertson, who agreed to write the Foreword to this book, Iwould like to express my gratitude, not just for this task but also for theinspiration that his own work has had upon my decision ever to take upthe law and to stick at the area of international criminal justice To FinolaO’Sullivan at Cambridge University Press, for her enthusiasm and encour-agement for this project, and others, much thanks Finally, I would like toacknowledge the trial judges and lawyers with whom I had the great privi-

lege to work throughout the years of the Milosˇevic´ trial The myriad of

stories and events that can now never be told were shared with some ofthese people and I am grateful for their enormous commitment to this onegreat project of international criminal justice

Gideon BoasOctober 2006

On 11 March 2006, Slobodan Milosˇevic´ died in his bed in the UNDetention Unit in The Hague.1At the time, he had been on trial for 66count of genocide, crimes against humanity, grave breaches of theGeneva Conventions and violations of the laws and customs of war Thealleged conduct encompassed more than 7,000 allegations of wrongdoingover eight years of conflict in the former Yugoslavia Milosˇevic´’s death left

a significant hole in the fabric of the development and solidification ofinternational criminal justice An emblem of a challenge to the impunity

of tyrannical heads of state who commit such atrocities ended lamentably

The trial had lasted over four years and, despite ex post facto statements by

the prosecution that its end was only weeks away,2in reality it was somemonths away from being concluded, and yet many more months from ajudgement being rendered The reasons for the trial lasting so long lay in anumber of factors, chief among which were the scope of the prosecutioncase and the refusal to adjust its case strategy; the Appeals Chamber’sruling to join the three indictments (Croatia, Bosnia, and Kosovo) intoone gargantuan indictment; issues relating to the self-representation; andthe ill health of the accused, which caused interruptions to the trial andrequired a reduced sitting schedule

With the passing away of Milosˇevic´, many feared – and some hoped –that international criminal justice was experiencing some sort of deathitself For the victims of the wars in the former Yugoslavia, the people andcommunities of the region, the family and supporters of the accused, theinternational community and those dedicated to the process, it was aheavy blow



1 See Prosecutor v Milosˇevic´, ‘Order Terminating the Proceedings’, Case No IT-02-54-T,

14 March 2006; ‘Report to the President: Death of Slobodan Milosˇevic´’, Judge Kevin Parker, Vice-President, 31 May 2006 LM/MOW/1081e www.un.org/icty/milosevic/parkerreport pdf at 15 August 2006.

1 Statement by the ICTY Prosecutor, 11 March 2006, FH/OTP/1051e www.un.org/icty/ latest-e/index.htm at 15 August 2006.

Yet the trial stands for much in the development and the future of national criminal justice, both politically and legally In developing princi-

inter-ples for the best practice of international criminal trials, the Milosˇevic´ trial

is a pre-eminent source for the conduct of such trials, in both positive andnegative ways

The Purpose and Content of this Book

The key purpose of this book is to analyse what lessons can be learnt from

the Milosˇevic´ trial that would improve the fair and expeditious conduct of

complex international criminal trials of senior political and military

officials Critical to this question is the challenge of striking an appropriatebalance between the sometimes competing obligations on a court to guar-antee an accused person’s right to a fair trial and to bring trial proceedings

to a conclusion with reasonable expedition A common feature of thetrials of senior political and military leaders accused of violating interna-tional criminal law is that they rarely physically perpetrate the allegedcrimes themselves Instead, individual criminal responsibility for theseaccused is either based on some involvement in planning, ordering orinstigating the crimes, or on a failure to act to prevent or punish the crimesoccurring (superior or command responsibility) In such circumstances,the prosecution has the double challenge of proving the crimes themselves

as well as the accused’s responsibility for those crimes More often thannot, senior political and military leaders are charged not with responsibil-ity for a single isolated incident, but with the design or implementation of

a policy encompassing numerous incidents in various physical locations,

or with the failure to act to stop patterns of conduct involving multipleincidents of atrocity These factors usually render such trials exceedinglycomplex and very long

Thanks to a war in Iraq and some good luck in digging a coweringformer dictator out of a hole in the ground, as well as an apparent change

of political will in Nigeria, Milosˇevic´ did not remain for long the onlyformer head of state to be tried for atrocities on a vast scale against his ownand others citizens At the time the door was closing on the writing of thisbook, the trials of Saddam Hussein abruptly concluded with his execution,ordered by the Supreme Iraqi Criminal Tribunal in Iraq for his involve-ment in the Dujail massacre (the Anfal genocide trial obviously beingabandoned) and Charles Taylor, charged with crimes against humanityand other serious violations of international humanitarian law, was takeninto custody by the Special Court for Sierra Leone and transferred to The

Hague where the Sierra Leone Court will make use of the facilities of theInternational Criminal Court.

However, the place of the Milosˇevic´ trial remains unique for several

reasons It was the first trial of a former head of state by an internationalcriminal tribunal and one of the most complex and lengthy war-crimestrials in history It spawned problems and lessons that no other trial hadnecessarily confronted or contemplated Despite early hopes for the trials

of Saddam Hussein and other former Iraqi leaders, the Iraqi Tribunal hasbeen profoundly plagued with fair trial and impartiality issues that willtarnish any judgement it renders3and it is not, at any rate, an internationalcriminal tribunal.4Differently placed, the Taylor trial is poised to impactupon some of the fundamental issues considered in this book but will takesome time yet to begin and conclude

In analysing the Milosˇevic´ case, I will seek to identify the criteria for

determining what constitutes fairness and what constitutes ness in international criminal trials I will also explain how these conceptsinteract and, on occasion, conflict I will argue that best practice in theconduct of such trials requires, first and foremost, that the trial be fair, andsecond, but also extremely important, that the trial be expeditious I willanalyse how these concepts must sometimes be balanced to arrive at crite-ria of best practice for such trials This will lead to recommendations forreform concerning the future conduct of international criminal trials

1 See Diane Marie Amann, ‘ “The Only Thing Left is Justice”: Cherif Bassiouni, Saddam Hussein, and the Quest for Impartiality in International Criminal Law’ in David E Guinn

(ed.), Coming of Age in International Criminal Law: An Intellectual Reflection on the Work of

M Cherif Bassiouni (forthcoming); report by Human Rights Watch on the removal of

Judge Abdullah al-Amiri, the presiding judge of the Hussein trial by a decision of the Prime Minister and Cabinet because, according to a Government spokesman, ‘he ha[d] lost his neutrality after he made comments saying Saddam is not a dictator’: ‘Removal of Judge a Grave Threat to Independence of Genocide Court’, Human Rights Watch, 19 September

2006 http://hrw.org/english/docs/2006/09/19/iraq14229.htm at 4 October 2006.

1 For information about the Iraqi Special Tribunal, how it is structured and will operate and the revocation of the initial statute and transition to the Iraqi High Criminal Court (including rebu ffing the notion that the tribunal should be international in nature), see

generally Michael J Frank, ‘Justice for Iraq, Justice for All’ (2004) 57 Oklahoma Law Review

303; Michael P Scharf and Curtis F J Doebbler, ‘Will Saddam Hussein Get a Fair Trial?’

(2005) 37 Case Western Reserve Journal of International Law 21 (recorded debate); Human

Rights Watch, ‘The Former Iraqi Government on Trial: A Human Rights Watch Briefing paper’, 16 October 2005; Diane Marie Amann, ‘ “The Only Thing Left is Justice”: Cherif Bassiouni, Saddam Hussein, and the Quest for Impartiality in International Criminal Law’, above n 2; Eric Stover, Hanny Megally, and Hania Mufti, ‘Bremer’s “Gordian Knot”:

Transitional Justice and the US Occupation of Iraq’ (2005) 27 Human Rights Quarterly 830,

838–43.

My use of the reference to best practice in the context of this book isone that requires some explanation Although the development ofmodern international criminal law is in many profound respects incipient

in nature, some important work has begun to flesh out or suggest ingful solutions to the myriad problems facing the conduct of complex

mean-international criminal trials The Milosˇevic´ case proved a crucial source

for this work, and other cases have followed or have taken differentapproaches All of this suggests that the process of determining and defin-ing best practice in the conduct of such trials, while in the early stages ofdevelopment, is not purely aspirational

Furthermore, in discussing best practice in the context of this book, I

am expressing a clear preference for the view of international criminaltrials that their purpose is primarily forensic in nature – that is, to deter-mine the guilt or innocence of individuals for their role in atrocities Iacknowledge that this is not the only view of the purpose and nature ofinternational criminal trials, and that some scholars reason that theyshould be legitimately viewed as broader sociological and/or politicalexercises fulfilling a purpose beyond the determination of the guilt orinnocence of the accused being tried – whether that be a commemorative

or didactic function.5However, while these may be legitimate derivativeoutcomes of international criminal trials (outcomes that are profoundlysubjective in nature), I do not believe that these trials can operate

effectively or – far more importantly – fairly outside of the forensic trialparadigm Therefore, when I discuss best practice throughout this book it

is in measurement against the more traditional view of a criminal trial as aforensic process

The Milosˇevic´ trial was a fair trial, although some fair trial rights were

challenged by its conduct, the responsibility for this resting with the court,the prosecution, and the accused himself The trial was not concludedexpeditiously The predominant reasons for the lack of expeditiousness in

the Milosˇevic´ case were the prosecutorial approach taken, the approach of

the accused to the trial and his health, as well as some key trial and late decision-making In discussing these issues, it will not be the purpose

appel-of this analysis to disparage those involved in the trial and making process, although inevitably criticism will be made so as to extract

1 See Gerry J Simpson, Law, War and Crime (forthcoming), chapter four See also, Laurence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust

(2001); Shoshana Felman, The Juridical Unconscious: Trials and Traumas in the Twentieth

Century (2002); Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil

(1994).

lessons for the future conduct of these important trials In fact, the gle to conduct and to conclude this trial provides crucial primary sourcematerial for the future achievement of fair and expeditious internationalcriminal trials of senior political and military accused, including that ofCharles Taylor.

strug-While nomenclature relating to ‘truly’ international tribunals posed entirely of international judges) and ‘internationalised’ tribunals(otherwise described as hybrid or supranational tribunals, which are com-posed of a mix of international and national judges) has been employed, it

(com-is equally acceptable – and has been said to be preferable by some ars – to describe all such courts or tribunals as ‘international’.6The reasonfor this is that, while the composition, structure, and constitutionalframework of such institutions may vary, each tribunal falls at a differentpoint in the ‘spectrum of internationality’ and each serves the same end

schol-of international criminal justice.7 Differing terminology will be usedthroughout this book to refer to these courts and tribunals depending oncontext, sometimes distinguishing their character but often speakinggenerically of them as ‘international’, particularly when referring to gen-erally accepted practice or procedure in international criminal law

The Structure of this Book

The first substantive chapter of this book discusses the principles of a fairand expeditious trial The analysis focuses on the interpretation andapplication of such rights in international criminal law, as developed inthe jurisprudence of the ICTY and other international criminal tribunals

1 See Diane Marie Amann, ‘ “The Only Thing Left is Justice”: Cherif Bassiouni, Saddam Hussein, and the Quest for Impartiality in International Criminal Law’ in David E Guinn

(ed.), Coming of Age in International Criminal Law: An Intellectual Reflection on the Work of

M Cherif Bassiouni (forthcoming), where Amann claims that, although useful for some

purposes, the distinction between ‘international’ and ‘internationalised’ ‘obscures that each forum rests at a di fferent point on a spectrum of internationality; that is, each is one of several judicial mechanisms available to serve the international criminal justice project’ See also Jacob Katz Cogan, ‘International Criminal Courts and Fair Trials: Di fficulties and

Prospects’ (2002) 27 Yale Journal of International Law 111, 127–8; Laura A Dickinson,

‘Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International

Tribunals, and the Rule of Law’ (2002) 75 South California Law Review 1407, 1411; Mark

A Drumbl, ‘Collective Violence and Individual Punishment: The Criminality of Mass

Atrocity’ (2005) 99 Northwestern University Law Review 539, 542–4; Patricia M Wald,

‘Accountability for War Crimes: What Roles for National, International, and Hybrid

Tribunals?’ (2004) 98 American Society of International Legal Proceedings 192.

7 Diane Marie Amann, above n 5, 2.

(all of which operate within the same fundamental rights framework)

and, in particular, the Milosˇevic´ trial While fair trial issues emerge and are

discussed throughout this book in their context, this chapter focuses onsome broad principles and rights, such as the principle of an expeditioustrial, the right to a trial without undue delay, the principle of equality ofarms, the right to a public trial, the right to confront witnesses, defencerepresentation and particularly the right to self-representation, as well asthe interpretation and application of human rights in international crim-inal law These issues are of fundamental importance to the framework inwhich international criminal law is created, interpreted, and applied, andform the basis for any prescriptive discussion about how to conduct inter-national criminal trials

Chapter 2 turns to the logical first step in an analysis of the Milosˇevic´

trial – the prosecution’s indictments, its case strategy, and the substance ofits case The role of the prosecution is extremely significant in interna-tional criminal trials In the adversarial structure of international criminallaw, it is the prosecution that conducts investigations, makes decisionsabout who to indict, and prepares the indictments which determine thenature, scope, and structure of the case The purpose of this chapter is to

examine the prosecution’s approach to the Milosˇevic´ case to determine

criteria for best practice in the conduct of such trials This chapter willestablish that important strategic and policy aspects of the prosecution

case in Milosˇevic´ were far from best practice, and seriously threatened the

fair and expeditious trial framework within which international criminalproceedings are to be conducted The prosecution approach to its case waszealous and overly expansive, creating a trial that was unmanageablycomplex and long The factors which contributed to this are examined, asare some of the considerations which motivated the prosecution toapproach its case in this way There are tensions and competing interests inthe presentation of complex international criminal trials, which encom-pass forensic, historical, political, and sociological issues The prosecu-tion, while seeking in good faith to satisfy the interests it consideredsignificant, made it impossible to conduct an expeditious trial and put atrisk its fairness, requirements that are not only the responsibility of thecourt but also – to a lesser but significant extent – the responsibility of aprosecutor in international criminal proceedings

Chapter 2 examines the three indictments against Milosˇevic´ An sis of the prosecution indictments reveals significant defects, and thesewill be identified and discussed in some detail The prosecution caserevolved around a theory that Milosˇevic´ espoused the notion of a Greater

Serbia and implemented policies to realise the notion – a case theorywhich remained unclear until well into the defence case This theory is dis-cussed in the context of the prosecution’s case to better understand itsapproach and the overall effect on the length and complexity of the trial.The pleading requirements for indictments before the ICTY and theindictment review process in this and other cases is discussed, as is the

relevant content of the three Milosˇevic´ indictments The prosecution

application for joinder of the three separate indictments – one of the mostimportant issues in the trial because of its consequent impact on issues offairness and expedition – is explored Finally, the ruling of the TrialChamber on the motion for judgement of acquittal will be analysed TheDecision is important because it dismissed over one thousand individualallegations against the accused and is the only pre-Judgement determina-tive ruling of the Chamber on aspects of the indictments

Chapter 3 first considers case management challenges experienced in

the Milosˇevic´ trial The prosecution and defence cases in the Milosˇevic´

trial and how the Trial Chamber managed them are analysed, as are theinnovative case management techniques developed and applied, or con-sidered and dismissed, during that trial Measures for managing complexinternational criminal law cases are considered and a framework for bestcase management practice in international criminal law is developed The

scope of the prosecution case in Milosˇevic´ had a direct impact on the scope

of the defence case The Trial Chamber tried several techniques to managethe case, ultimately determining that limiting the time allocated to theparties was the preferable approach Other radical case managementapproaches were considered, and these alternatives are analysed in thecontext of the management of international criminal trials

The case management experience of the Milosˇevic´ trial is not, however,

entirely unique There is a body of practice in national law as well as oping experience in international law relevant to developing best practicefor the conduct of international criminal trials This chapter will alsoexamine the development and application of case management in domes-tic criminal law systems and then in modern international criminal law,

devel-in particular before the ICTY (where most of the regulatory and prudential developments have occurred) Given the circumstances ofMilosˇevic´’s death, these considerations take on a particular importance in

juris-the case management analysis Lessons abound in juris-the Milosˇevic´ case in

how to manage complex international criminal trials to a satisfactory clusion Again, balancing a Trial Chamber’s commitment to a fair andexpeditious trial is central to this analysis

An issue of developing importance and complexity in the conduct ofthese cases is the assertion by accused of a right to represent themselves.Chapter 4 commences with a discussion of Milosˇevic´’s insistence on aright to self-representation After two and a half years of trial, followingthe completion of the prosecution case, the commencement of his defencecase, and after having upheld on several occasions his right to representhimself, the Trial Chamber imposed court-assigned defence counsel onMilosˇevic´ In doing so, the Chamber initiated an important legal deve-lopment concerning how an accused’s right to a fair trial is to be inter-preted in international criminal law The operation of the right toself-representation, and its treatment in the common law, civil law, andregional human rights systems having already been discussed in chapter 1,the development and treatment of self-representation in all the interna-tional criminal courts and tribunals that have dealt with this issue will beanalysed.

Chapter 4 will then consider the issues related to representation andresources in international criminal law These matters were some of the

most contentious of the Milosˇevic´ trial, and have plagued other

interna-tional criminal trials of high-ranking accused In the brief existence ofmodern international criminal law, there has been significant development

of different representation models, ranging from standard defence counsel

representation to innovative use of amici curiae Closely related to

repre-sentation is the issue of adequate resources for an accused to prepare andpresent an effective defence In complex cases of this nature, representationand resources issues go to the core of fair trial rights, in particular those ofadequate time and facilities for the preparation of a defence; the right tocommunicate with counsel of an accused’s own choosing; the right ofdefence in person or through legal assistance, and the equality of arms Theapplication of these principles in the complex international criminal trialprocess already discussed in chapter 1 is considered with particular refer-

ence to the way these principles were applied in the Milosˇevic´ case.

In chapter 5, the conclusions and outcomes of the analysis in this bookare discussed and proposals for reforms to the conduct of complex interna-tional criminal trials are made Fairness and expeditiousness in such trialsmust be considered in light of the competing interests and issues discussed

throughout this book The Milosˇevic´ trial was fair but it was not

expedi-tious The lessons learnt from the analysis of this and other internationalcriminal trials considered in this work form the basis for reaching impor-tant conclusions about how such trials must be conducted to achieve bestpractice Obligations on the prosecution to exercise restraint, focus their

cases, and act responsibly are of paramount concern Where such restraint

is not exercised, courts must act in a measured but firm manner to ensurefairness and reasonable expeditiousness Courts must themselves develop

or have developed for them (depending on the applicable system) their ulatory framework to optimise the procedural and substantive environ-ment in which the goals which make up best practice can be achieved.Courts must also develop and apply consistent and balanced jurisprudence

reg-to attain these goals Within this framework, development of innovative

and well-considered case management must occur Again, the Milosˇevic´

trial created a basis from which this important area of procedural law can –and already has started to – develop Proposals for future reform andperimeters within which case management principles can be applied arediscussed and concrete proposals are made for how to manage these cases.Conclusions relating to the management of resource and representationissues in complex international criminal law cases are made, as are propos-als concerning the future conduct of these trials where the right to self-representation is asserted The tension in the application of common lawand civil law principles is an issue that re-emerges throughout this book It

is argued that while these tensions were instrumental in the development

of important aspects of international criminal law, it is now time toabandon the preoccupation of international criminal courts and tribunalswith this dichotomy and embrace the newly created system of internationalcriminal law as a jurisdiction in its own right This chapter will then con-

sider problems in the appellate structure, particularly flowing from the ad

hoc Tribunals, but also more generally the structure of appellate review in

international criminal courts and tribunals and propose an appropriateway in which to provide for appellate review in international criminal law

In tying these conclusions together, I will discuss the crucial lessons from

the Milosˇevic´ trial and what potential reforms emerge that will contribute

materially to the achievement of fair and expeditious international nal trials of senior officials in the future

crimi-The Context of this Book

One of the critical analyses of the Milosˇevic´ case is an understanding of

what worked, what did not work, and why, so that lessons can be drawnfor future trials of this kind Complex international criminal trials arefraught with difficulties, requiring the existence and application of a well-structured legal process that respects the fundamental rights of the

accused However, as can be seen from the Milosˇevic´ trial, the modern

international criminal trial process, with its well-articulated fair trialguarantees for accused persons, is not strictly speaking designed to dealwith intelligent and manipulative accused, who do not accept the legiti-macy of the judicial process to which they are subjected and who have apolitical agenda to pursue, using the forensic trial process as their stage.Milosˇevic´ was exactly such an accused, and he exploited the niceties of thecriminal legal process and the weaknesses inherent in a prosecution and acourt trying someone of this stature for the first time Milosˇevic´ made hisposition clear from the outset At his initial appearances and early on inthe trial, he adopted a robust rejection of the Tribunal’s legitimacy –accusing it of being the puppet of NATO, and the indictments against himanother farcical extension of the international community’s persecution

of the Serbs in general, and of him in particular.8 At Milosˇevic´’s initialappearance, he predictably rejected the legitimacy and legality of theTribunal, and the purpose for which it sought to try him:

I consider this Tribunal a false Tribunal and the indictment a false ment It is illegal being not appointed by the UN General Assembly, so I have no need to appoint counsel to [an] illegal organ This trial’s aim is

indict-to produce false justification for the war crimes of NATO committed in Yugoslavia 9

Milosˇevic´ continued to stress this position in subsequent hearings prior tothe commencement of his trial, and at times – although with diminishingfrequency – during his trial.10Exemplifying his use of the forensic trialprocess for political purposes, Milosˇevic´ stated at the pre-trial conferencefor the Kosovo part of the case:

[A]n operation is under way to reverse the scene and the culprit and accused, and all this is geared towards a construed justification for the crimes committed during the NATO aggression on my country and my nation Even the indictment represents proof that what I say is true, that is, further evidence of it, because all the alleged misdeeds committed in con- formity of that indictment by the armed forces of Yugoslavia, which I had the honour to be at the head and command, were precisely put into a time framework which is the time framework during which the NATO air cam- paign and aggression against my country was committed.

1 See e.g., Prosecutor v Milosˇevic´, Hearings, 3 July 2001, at Transcript, 2; 30 August 2001;

12 November 2001; 9 January 2002.

1 Prosecutor v Milosˇevic´, Hearing, 3 July 2001, Transcript, 2, 4.

10 See e.g., Prosecutor v Milosˇevic´, Hearings, 30 August 2001; 12 November 2001; 9 January

2002.

It is quite obviously the intention to explain how those who defended their families, who defended their children and their thresholds and homes and home country are criminals, are evil people, whereas those who trav- elled thousands and thousands of kilometres to destroy their houses in the course of the night and to kill innocent people and to destroy maternity wards, hospitals, bridges, railways, that those are the people who, in coop- eration with the Albanian terrorists, are responsible for the vast number of victims and for enormous material damage And with this reversal of thesis, it would appear that they are the good guys and that they should be given the support of international public opinion 11

There are some interesting analogues to the events surrounding the trials

of Milosˇevic´ and Saddam Hussein Hussein’s arrest, confinement, and thecommencement of his trial have certain similarities to Milosˇevic´ At hisappearance before the Iraqi Special Tribunal on 20 October 2005, Husseinstood in defiance:

‘I do not recognize the body that has authorized you and I don’t recognize this aggression I do not respond to this so-called court, with all due respect’, and when identified by the Judge as the ‘former president’, Hussein snapped,

‘I said I’m the president of the republic of Iraq I did not say deposed.’ 12

The personality of the deposed dictator/accused is an interesting factor

in the conduct of international criminal proceedings against them.Milosˇevic´’s initial defiance, like that of Hussein, really mirrors the dictator-ial personality-type when trapped and subjected to a civilised legal process

As Geoffrey Robertson noted in respect of the Nuremberg trial:

In retrospect, the most astonishing feature of Nuremberg was how the adversary dynamics of the Anglo-American trial sucked in the defendants, who played an earnest and polite, at times desperate, part in making it work Their leader, Goering, had initially advised them to confine their evidence to three words, ‘Lick my arse’ – the defiant catchcry of one of Goethe’s warrior heroes But as months passed they became flattered by the fairness (at least fairishness) of the procedures and rose to the bait of making their excuses to posterity 13

These accused have a particular personality profile that makes the agement and conduct of their cases difficult – a theme that re-emerges in

11 Prosecutor v Milosˇevic´, Hearing, 9 January 2002, Transcript, 287.

12 See CNN Report, ‘Saddam Hussein Defiant in Court’, 20 October 2005, http:// www.cnn.com /2005/WORLD/meast/10/19/saddam.trial/ at 1 October 2006.

13 Geoffrey Robertson, Crimes Against Humanity (1999), 203.

consideration of various issues in this book Milosˇevic´, Hussein, andTaylor – all having ruled their nations with varying aggression, brutality,and manipulation – when their fortunes changed either fled their country,hid in the ground, or barricaded themselves into a luxury family com-pound This combination of pathological self-belief, megalomania, andcowardice is a factor that renders the trial of these people extremely

difficult

Milosˇevic´ himself had no intention of playing into the prosecution’shands and remaining mute while the case against him was laid out anddetermined.14Despite his belligerence towards the court, he engaged in arobust and, at times, competent forensic defence, while all the time main-taining at least the façade that he was interested only in telling the ‘truth’ tothe world, a political and social truth, that placed NATO and its memberStates (in particular the USA and Germany), as well as the Vatican, ontrial Yet although the rhetoric gradually subsided and Milosˇevic´ cooper-ated superficially with the trial process and the institution he had vowed tobring down, his conduct and manipulative talents continued to have anextraordinary impact on the viability of the proceedings

However, the conduct of Milosˇevic´ is only one part of this story It is notunexpected that an accused of this nature might have the will, and somecapacity, to interfere in the trial in such a way as to threaten its fair andexpeditious conduct Of greater significance to the conduct of complexinternational criminal trials is the manner in which the prosecution andthe court approach the preparation and undertaking of all aspects of the

proceedings The Milosˇevic´ trial is rich in lessons about what to do and

what not to do in order to achieve best practice in the conduct of thesecases, and this is at heart what this book is about

14 See e.g., Prosecutor v Milosˇevic´, ‘Prosecution’s Position in Relation to Management of Trial

Proceedings and the Regime for Presentation and Admission of Evidence with Comments

on Issues Concerning the Accused’s Health’, Case No IT-02-54-T, 5 April 2002, para 7(e), which acknowledges that the Prosecution planned its case initially on the basis that ‘the Accused would take little or no part in the trial process’.

1 Fair and Expeditious International Criminal Trials

Introduction

This chapter analyses the key principles of fairness and expedition, bywhich all international criminal trials are to be conducted, and which aredefined in the constitutional instruments and the relevant jurisprudence

of the major international criminal tribunals The ICTY, as the richestsource for the development of these principles in international criminallaw, will be the main focus of the analysis, although appropriate referencewill be made to other courts and tribunals applying them and to theirorigin and context in international human rights law In analysing theseprinciples of fairness and expeditiousness, criteria will be identified fordetermining what constitutes fairness and what constitutes expedition incomplex international criminal trials, as well as explaining how theseconcepts interact and, on occasion, conflict This problem is not new tointernational criminal law Sixty years ago, Lord Wright, Chairman of the

UN War Crimes Commission, commented on the conduct of the

post-World War II Belsen trial:

For a few days I occupied the seat marked for the British observer and could observe and admire the fairness of the trial, though I noted, as in other such cases, that fairness was not generally compatible with expedition 1

Complexities arise in defining the contours of these principles, how theyinteract and how they are to be balanced and applied in the internationalcriminal law context Fair trial rights, strictly speaking, belong to anaccused and are applied as a guarantee to ensure he or she receives a fairtrial Expedition, on the other hand, is a consideration which reflectsmore the interest of the community (the international community in thecase of international criminal trials) in seeing proceedings brought to aconclusion in an acceptable time But in reality these sets of interests arecomposite in nature, such that both the accused and the international



1 Law Reports of Trials of War Criminals (1947), volume 11, Foreword by Lord Wright.

community have a stake An overly long trial threatens its fairness,because it can be unmanageable for an accused for a variety of reasons.Furthermore, if any aspect of a fair trial is not properly respected then thewhole process of international criminal justice suffers and, therefore, thecommunity interest in the proper functioning of the trial process It is notsimply a case of asserting that an accused wants a fair trial but that theinternational community wants a trial that is expeditious For example, itwas clear that Milosˇevic´ did not want an expeditious trial, seeking con-stantly to extend the time taken to prepare and present evidence Otheraccused in other international criminal tribunals evince a similar attitude,

in different ways seeking to obstruct or delay the trial process.2

In many ways, these principles manifest as competing interests A trialmight be fair but not expeditious A trial might be expeditious but notfair, for example if an accused were refused permission to lead highly rel-evant evidence because of a time limitation imposed Of course, a trialcould be neither fair nor expeditious Obviously, international criminaltrials should be both fair and expeditious How to navigate that course incomplex international criminal trials is problematic, and the myriadissues which make up the components of these interests emerge through-out this book

These issues are further complicated by the context in which the keyprinciples are interpreted and applied, and by the practical application ofthem to international criminal trials The discussion in this chapter accen-tuates the difficulties sometimes experienced in appropriately definingand achieving fairness Lord Diplock of the Privy Council once said: ‘Thefundamental human right is not to a legal system that is infallible, but toone that is fair.’3There is force in this epigrammatic statement It is aproposition that has been reflected and reaffirmed consistently in thejurisprudence of the international criminal tribunals and it has particularapplication in light of the contextual and purposive interpretation of theapplication of human rights principles to international criminal law.4

1 See discussion in chapter 4 in the context of self-representation, concerning accused Norman (before the SCSL), Baryagwiza (before the ICTR) and Sˇesˇelj and Krajisˇnik (before the ICTY).

1 Maharaj v Attorney-General of Trinidad and Tobago (1978) 2 WLR 902 (Privy Council).

1 See e.g., Prosecutor v Nyiramasuhuko et al., ‘Decision in the Matter of Proceedings under Rule 15bis (D)’, Case no ICTR-98–42-A15bis, 24 September 2003, ‘Dissenting Opinion of

Judge David Hunt’, para 16: ‘There may be many difficulties placed in the way of an accused in the course of applying an ‘interests of justice’ test in various situations, so that the trial is not a perfect one (such as the need to protect victims and witnesses) but the absence of perfection does not mean that the trial will not be a fair one However, the

Fair Trial Rights

The right to a fair trial is a fundamental element of international humanrights law as it applies to the criminal trial process at both the domesticand the international level It would be logical that the world’s first multi-lateral criminal tribunal since Nuremberg would strive for best practice

in this area of its work The right to a fair trial is reflected in both primaryinstruments governing proceedings before the ICTY: the Statute and theRules of Procedure and Evidence.5In discussing the rights of the accused,the UN Secretary-General, in his Report to the Security Council on thecreation of the ICTY, stated:

It is axiomatic that the International Tribunal must fully respect nationally recognized standards regarding the rights of the accused at all stages of its proceedings In the view of the Secretary-General, such inter- nationally recognized standards are, in particular, contained in article 14 of the International Covenant on Civil and Political Rights 6

inter-Indeed, most of the fair trial rights and minimum guarantees accordedaccused persons before international criminal courts and tribunals are alargely verbatim repetition from the International Covenant on Civil and

      

interests of justice cannot be served where the accused is denied a fair trial.’ See also

Prosecutor v Milosˇevic´, ‘Decision on Admissibility of Evidence-in-Chief in the form of

Written Statements’, Case no IT-02–54-AR 73.4, 30 September 2003, ‘Separate Opinion

of Judge Mohammed Shahabuddeen’, para 16: ‘[T]he fairness of a trial need not require perfection in every detail The essential question is whether the accused has had a fair chance of dealing with the allegations against him.’ For a discussion of the application of human rights principles to international criminal law, see Section III of this chapter below.

1 www.un.org/icty/legaldoc-e/index.htm For a discussion of the right to a fair trial before

the ICTY, see generally Judge Richard May and Marieke Wierda, International Criminal

Evidence (2002); Salvatore Zappalà, Human Rights in International Criminal Proceedings

(2003); Christoph Safferling, Towards an International Criminal Procedure (2001), at

21–30; Patrick L Robinson, ‘Ensuring Fair and Expeditious Trials at the International

Criminal Tribunal for the Former Yugoslavia’ (2000), vol 11, no 3, EJIL, 569; Patrick L Robinson, ‘Fair but Expeditious Trials’ in Hirad Abtahi and Gideon Boas (eds.), The

Dynamics of International Criminal Justice: Essays in Honour of Sir Richard May (2005),

169; Hafida Lahiouel, ‘The Right of the Accused to an Expeditious Trial’, in Richard May

et al (eds.), Essays on ICTY Procedure and Evidence In Honour of Gabrielle Kirk McDonald

(2001), 197.

1 Report of the Secretary-General (S/25704), 3 May 1993, para 106 Some commentators argue that this statement is of crucial importance to guide the approach of the ICTY as a body which is ‘born’ of the UN Security Council (see James Sloan, ‘The International Criminal Tribunal for the Former Yugoslavia and Fair Trial Rights: A Closer Look’

(1996) 9 LJIL 475, 501), whereas other commentators give it little weight, describing it as a

political statement with no legal binding force (see Christoph Safferling, Criminal

Procedure 29).

Political Rights,7as well as regional human rights conventions, such asthe European Convention on Human Rights,8the American Convention

on Human Rights,9 and the African Charter on Human and Peoples’Rights.10The early view on the application of the fair trial provisions setout in these treaties was that they ‘define the right to a fair trial in crimi-nal proceedings’.11 The extension of these principles to international

criminal trials is both logical and appropriate.12Zappalà sets out severalarguments in favour of such an extension First, it is said that due process(or the package of fair trial rights) is a fundamental protection belonging

to the individual, ‘to be restricted only in exceptional circumstancesand to a limited extent’.13 Second, the ICTY and ICTR, as well as theICC, were created to contribute to international peace and justice ‘wherethe national system has collapsed or is otherwise unavailable due to anexceptional situation’ It would, therefore, be illogical that the instru-ments of international criminal law would not comply with due processguarantees.14 Third, the extension of due process principles to inter-national criminal trials allows states to cooperate with internationalcriminal courts without the risk of non-compliance with their ownhuman rights obligations under domestic law.15The final argument forthis extension of fair trial rights to international criminal trials is thatthe fair trial rights set out in Articles 20 and 21 of the ICTY Statute(reflecting Article 14 of the International Covenant on Civil and Political

Rights (ICCPR)) amount to jus cogens, and are binding as such on the

tri-bunals and courts applying them.16

11 David Harris, ‘The Right to a Fair Trial in Criminal Proceedings’ (1967), vol 16, no 2, 352,

quoted in Zappalà, Human Rights, 5 See also David Weissbrodt and Rüdiger Wolfrum (eds.), The Right to a Fair Trial (1997).

12 Zappalà, Human Rights 5 See also Safferling, Criminal procedure.

13 Zappalà, Human Rights 5–6.

14 Ibid 6 See also Antonio Cassese, ‘Opinion: the International Criminal Tribunal for the

Former Yugoslavia and Human Rights’ (1997) 2 EHRLR, 331–2.

15 Zappalà, Human Rights, 6

16 See Gerhard Hafner, ‘Limits to the Procedural Powers of the International Criminal

Tribunal for the Former Yugoslavia’, in Karel C Wellens (ed.), International Law: Theory

and Practice (1998), 651, 657.

With regard to this last argument, however, it would be more accurate todistinguish between the fundamental right to a fair trial and the proceduralguarantees set forth in these international instruments While the right to a

fair trial is itself a jus cogens norm, the provisions which make up the

content or constituent parts of that right are more appropriately terised as amounting to customary international law.17The distinction is

charac-an importcharac-ant one for international criminal proceedings: as shown by theestablished practice of the ICTY, ICTR, and other international tribunals,although these provisions reflect customary international law, applicable

to international criminal proceedings,18 these fair trial provisions havebeen subjected to contextual interpretation and, at times, derogation For a

      

17 See above, n 6 (comments of the UN Secretary-General reflecting the view that the fair trial provisions in question amount to rules of customary international law) and the statement

of the Secretary-General that ‘the application of the principle nullem crimen sine lege

requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of some but not all States to specific Conventions does not arise’ (para 34 of his Report); see also Theodor

Meron, ‘Editorial Comment: Revival of Customary Humanitarian law’ (2005) 99 American

Journal of International Law 817 in particular arguing, at 818 and 821ff that international criminal tribunals have taken an essentially conservative and traditional approach to the identification and application of customary international law principles – an assertion with

which I do not agree; Theodor Meron, Human Rights and Humanitarian Norms as

Customary International Law (1989), 96–7; and, generally, Antonio Cassese, Human Rights in a Changing World (1990) For a general definition of customary international law,

see Continental Shelf (Libya v Malta) [1985] ICJ Rep 29; Nicaragua v USA (Merits) [1986] ICJ Rep 14, 97; Peter Malanczuk, Modern Introduction to International Law (7th edn 1997).

18 For the ICTY and ICTR, see e.g., Prosecutor v Blagojevic´ et al., ‘Decision on Dragan

Obrenovic´’s Application for Provisional Release’, Case No IT-02-60.PT, 22 July 2002;

Prosecutor v Aleksovski, ‘Judgement’, Case No IT-95-14/1-A, 24 March 2000; Prosecutor v Furundzˇija, ‘Judgement’, Case No IT-95-17/1-A, 21 July 2000; Semanza v The Prosecutor,

‘Judgement’, Case No ICTR-97-20-A, 20 May 2005; Prosecutor v Milosˇevic´, ‘Reasons for

Decision on the Prosecution Motion Concerning Assignment of Counsel’, Case No 02-54, 4 April 2003 For the Special Court of Sierra Leone (‘SCSL’), see e.g., Article 17 of the SCSL Statute and Rule 33 to 46 of the SCSL Rules of Procedure and Evidence, available

IT-at www.sc-sl.org; ‘StIT-atement Issued by the Principal Defender IT-at the Beginning of the Defence Case in the CDF Trial’, www.sc-sl.org, http://www.sc-sl.org/Press/statement-

012006.pdf, at 1 October 2006; Prosecutor v Norman, ‘Decision on the Prosecutor’s

Motion for Immediate Protective Measures for Witnesses and Victims for Non-Public

Disclosure’, Case No SCSL-2003-08-PT, 23 May 2003; Prosecutor v Norman et al.,

‘Decision on the Application for a Stay of Proceedings and Denial of Right to Appeal’, Case No SCSL-2003-09-PT, 4 November 2003 For the East Timor Tribunal, see e.g., Section 2, Transitional Rules of Criminal Proceedings (UNTAET Regulation 2000/30, as amended by 2001/25), available at http://www.jsmp.minihub.org; Judicial System

Monitoring Programme, The Case of X: A Child Prosecuted for Crimes Against Humanity

(Dili, Timor Leste, January 2005), http://www.jsmp.minihub.org/Reports/jsmpreports/ The%20Case%20of%20X/case_of_x_final_e.pdf at 1 October 2006; Suzannah Linton,

‘Cambodia, East Timor and Sierra Leone: Experiments in International Justice’ (2001) 12

customary rule to be jus cogens, no derogation to it would be permissible.19

Of course, such judicial modification in the implementation of these

guar-antees is not itself a conclusive indication that they cannot be jus cogens

norms which have themselves been violated However, the treatment ofthese rights both in their interpretation in international criminal law, aswell as within the human rights regime (as is apparent from the discussionbelow), embodies a pragmatic practice which reflects this view of the rela-tionship between the right to a fair trial and the specified procedural guar-antees, particularly as international tribunal jurisprudence speaks of suchderogations being exercised for the achievement of the fairness of the trialoverall or otherwise in the interests of justice

It will therefore be clear that courts and tribunals applying tional criminal law must apply the fair trial provisions set out in theirconstitutive instruments and reflected in the human rights treaties onwhich those provisions are based Yet, tensions emerge in the strictapplication of human rights standards to the evolving internationalcriminal law system There is a distinct tension in the consideration ofhuman rights principles, particularly as interpreted by some humanrights bodies, to the application of substantive and procedural interna-tional criminal law Their interpretation and application to achieve afair and expeditious trial has and must be made in the context of this

interna-sui generis system of law At the same time, there are examples of

incon-sistent or tentative approaches taken in some of the jurisprudence,

Footnote 18 (cont.)

Criminal Law Forum 185, 199, 228; Lino De Carvalho v Prosecutor General, Criminal

Appeal No 25 of 2001, Judgement of Frederick Egonda-Ntende, 29 October 2001; The

General Prosecutor v Joni Marques and 9 Others, Case No 09/2000, Judgment, 11

December 2001; Suzannah Linton, ‘Unravelling the First Three Trials at Indonesia’s Ad

Hoc Court for Human Rights Violations in East Timor’ (2004) 17 Leiden Journal of

International Law 303 For the Cambodia Tribunal, see e.g Suzannah Linton, ‘Cambodia,

East Timor and Sierra Leone: Experiments in International Justice’ (2001) 12 Criminal

Law Forum 185, 198; Janet Lee and Karen Yookung Choi, ‘Introduction to the Khmer

Rouge Tribunal’, Cambodian Genocide Group, 2 November 2005, http://www.

cambodiangenocide.org/khmerrouge_tribunal.htm at 1 October 2006 See, generally, Håkan Friman, ‘Procedural Law of Internationalized Criminal Courts’, in Cesare P R Romano, André Nollkaemper, and Jann K Kleffner (eds.), Internationalized Criminal

Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia (2004).

19 See R Y Jennings and A Watts (eds.), Oppenheim’s International Law (9th edn 1992), 7-8; Malcolm N Shaw, International Law (3rd edn 1995), 98-9; Antonio Cassesse, International Law (2nd edn 2004) This would mean that the international criminal tribunals either accurately interpreted these provisions as amounting to customary international law but

not referring to them as jus cogens, or – to the extent derogation has occurred – they are in

violation of them.

particularly by the ICTY and ICTR, which will be examined This willinevitably leave some with the sense that there is randomness in theapplication of fair trial rights in international criminal law However,evolving jurisprudence which reasons well the application of these prin-ciples by reference to international and regional human rights courtsand bodies and domestic criminal courts in different legal systems will,and already has, given a greater sense that international criminal law is asolid and well-founded system of law, which respects fundamentalrights and norms.

These issues are highly relevant to the conduct of complex tional criminal trials The analysis in this chapter concerns importantunderpinnings for the ascertainment of the effective and proper conduct

interna-of such trials

Articles 20 and 21 of the ICTY Statute are the critical provisions settingout the fair trial rights before the ICTY:20

Article 20 Commencement and conduct of trial proceedings

1 The Trial Chambers shall ensure that a trial is fair and expeditiousand that proceedings are conducted in accordance with the rules ofprocedure and evidence, with full respect for the rights of the accusedand due regard for the protection of victims and witnesses

2 A person against whom an indictment has been confirmed shall,pursuant to an order or an arrest warrant of the InternationalTribunal, be taken into custody, immediately informed of the chargesagainst him and transferred to the International Tribunal

3 The Trial Chamber shall read the indictment, satisfy itself that therights of the accused are respected, confirm that the accused under-stands the indictment, and instruct the accused to enter a plea TheTrial Chamber shall then set the date for trial

4 The hearings shall be public unless the Trial Chamber decides toclose the proceedings in accordance with its rules of procedure andevidence

Article 21 Rights of the accused

1 All persons shall be equal before the International Tribunal

2 In the determination of charges against him, the accused shall be tled to a fair and public hearing, subject to article 22 of the Statute

enti-      

20 See e.g., Robinson, ‘Ensuring Fair and Expeditious Trials, Sections (C) and (D).

3 The accused shall be presumed innocent until proved guilty ing to the provisions of the present Statute.

accord-4 In the determination of any charge against the accused pursuant tothe present Statute, the accused shall be entitled to the followingminimum guarantees, in full equality:

(a) to be informed promptly and in detail in a language which heunderstands of the nature and cause of the charge against him;(b) to have adequate time and facilities for the preparation of hisdefence and to communicate with counsel of his own choosing;(c) to be tried without undue delay;

(d) to be tried in his presence, and to defend himself in person orthrough legal assistance of his own choosing; to be informed, if

he does not have legal assistance, of this right; and to have legalassistance assigned to him, in any case where the interests ofjustice so require, and without payment by him in any such case

if he does not have sufficient means to pay for it;

(e) to examine, or have examined, the witnesses against him and toobtain the attendance and examination of witnesses on hisbehalf under the same conditions as witnesses against him;(f) to have the free assistance of an interpreter if he cannot under-stand or speak the language used in the International Tribunal;(g) not to be compelled to testify against himself or to confess guilt.The ICTY Rules also embody these fair trial rights Under these Rules:there is a presumption of innocence in favour of an accused;21the accused

is entitled to legal counsel, at the expense of the ICTY where he or she isindigent;22there is a right to a public hearing;23the accused has a right totest the prosecution evidence and present evidence on his or her ownbehalf;24there is a right to be protected against self-incrimination;25and,the Prosecutor is required to provide substantial pre-trial disclosure.26Asalready discussed, these and other rights set out in conformity withArticles 20 and 21 of the ICTY Statute, themselves based on the broaderfair trial principles set out in the above international instruments, areconsidered reflective of customary international law.27

21 Rules 62 and 87 22 Rule 42 23 Rule 78 24 Rule 85 25 Rule 90.

26 Rule 66 requires extensive disclosure and Rule 68 provides for disclosure of exculpatory evidence.

27 For an expansive analysis of the fair trial rights as applied and interpreted by the ICTY, see

May and Wierda, International Criminal Evidence, chapter VIII; Zappalà, Human Rights,

chapter 3, III; Rodney Dixon, Karim Kahn, and Richard May (eds.), Archbold: International

Criminal Courts: Practice, Procedure and Evidence (2002); Geert-Jan A Knoops, An